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Wojtaszek v. Litherland

March 26, 2010


The opinion of the court was delivered by: J. Phil Gilbert District Judge


Now pending before the Court is Defendant Pamela Moran's Motion to Dismiss Plaintiff's Second Amended Complaint (Doc. 38). For the reasons set forth below, this motion is GRANTED.


Plaintiff Matthew Wojtaszek filed a pro se complaint in this action on April 29, 2008, alleging that Defendants Litherland, Correll, and Moran were deliberately indifferent to his serious medical needs in violation of his constitutional rights. Plaintiff alleged that Defendants refused to provide him dental treatment for two painful, infected teeth, insisting that he consent to the extraction of two other non-symptomatic teeth first. Upon threshold review under 28 U.S.C. § 1915A, the District Court found that Plaintiff stated a claim of deliberate indifference against all defendants (Doc. 7). Plaintiff filed a pro se amended complaint on November 10, 2008 (Doc. 13). Plaintiff's retained counsel entered appearances on December 9, 2008, and filed a Second Amended Complaint on April 15, 2009 (Doc. 34), which added Wexford Health Sources, Inc. as a Defendant. On April 29, 2009, Defendant Pamela Moran filed a Motion to Dismiss Plaintiff's Second Amended Complaint (Doc. 38).

Plaintiff's Second Amended Complaint

After Defendants Litherland and Correll refused to treat his painful cavities, Plaintiff filed a grievance complaining of the lack of treatment. The grievance officer, Defendant Moran, responded to the grievance as follows:

Facts Reviewed:

Dr. Litherland, DMD, responds that Mr. Wojtaszek is in need of several dental extractions as indicated from his dental x-rays and previous oral exams. Dental restoration will be utilized after all severely decayed symptomatic, non-restorable teeth are removed. Standard dental protocol dictates removal of non-restorable teeth before operative procedures performed. Dr. Litherland states this patient was informed of this mode of treatment, however refused dental extractions on two occasions. He may submit a request to begin recommended procedures. Recommendation: Based upon a total review of all available information, this Grievance Officer recommends that the grievance be denied. It appears Dr,. Litherland has outlined a treatment plan that inmate Wojtaszek will not agree to. Dr. Litherland states the plan is based on standard dental protocol. Inmate Wojtaszek is encouraged to allow treatment in order to benefit his health; he certainly may request medication for pain while treatment proceeds. (Doc. 34-2, p. 17).

As relevant to Defendant Moran, the second amended complaint includes the following paragraphs:

47. Plaintiff filed a grievance on July 17, 2007, regarding Litherland's and Correll's failure to treat teeth 7 and 8 or the pain associated therewith.

49. On or about August 7, 2007, Plaintiff forwarded his grievance to the grievance officer, Moran. On or about September 10, 2007, Moran denied Plaintiff's request for treatment, even though Moran knew or should have known Litherland and Correll had violated Directive 04.03.102 and, therefore, Moran should not have relied, and indeed was not entitled to rely, upon the alleged professional judgment of Litherland and Correll.

50. On or about October 9, 2007, Plaintiff forwarded his July 17, 2007 grievance to the Administrative Review Board. The grievance included Moran's improper denial of Plaintiff's request for treatment as well as the violations by Litherland and Correll of Directive 04.03.102. The grievance plainly indicated that Moran knew or should have known that the conduct of Litherland and Correll towards Plaintiff violated Directive 04.03.102 as well as Plaintiff's constitutional and statutory rights and, therefore, Moran's purported reliance on the professional judgment of Litherland and Correll was unreasonable. (Doc. 34, pp. 10-11).

Moran's Motion to Dismiss

In the motion and concurrently-filed memorandum of law, Defendant Moran argues, pursuant to FED. R. CIV. P. 12(b)(6), that Plaintiff's Second Amended Complaint fails to state a claim against her. Moran, a grievance officer, argues that non-medical employees are entitled to defer to the professional judgment of medical professionals regarding the medical care of a prisoner. Moran further argues that her only duty to the Plaintiff was to respond to his ...

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